Constitutional Conventions and the Headship of State: Australian Experience by Donald Markwell (Redland Bay: Connor Court Publishing, 2016) Pages 1–226
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BOOK REVIEW Constitutional Conventions and the Headship of State: Australian Experience by Donald Markwell (Redland Bay: Connor Court Publishing, 2016) pages 1–226. Price A$49.95 (hardcover). ISBN 978-1-925501-15-5. MICHAEL CROMMELIN AO* Dr Markwell is a prominent scholar in the field of headship of state in Australia and the United Kingdom. This book consists largely of a selection of his extensive writings over a period of more than thirty years in this challeng- ing, changing and contentious field. The selection includes book chapters, journal articles, conference papers, biographical notes, book reviews, public lectures, speeches, addresses, obituaries, opinion pieces and letters to the editors of newspapers. Most items have been published previously, but some have not always been readily accessible. Others have never been published. The book is organised into eight chapters and three appendices. The chap- ter titles provide a good indication of the breadth of the work: ‘Introduction’; ‘Constitutional Conventions and Responsible Government’; ‘The Crown and Australia (1987)’; ‘The Early Governors-General and the Consultation of High Court Judges’; ‘Three Governors-General: Hasluck, Kerr, Cowen’; ‘The 1975 Constitutional Crisis and the Conventions of Responsible Government’; ‘Debating the Headship of State — Monarchy to Republic?’; and ‘The Office of Governor-General (2014)’. Appendix 1 lists the Monarchs, Governors- General, Chief Justices of the High Court, and Prime Ministers since 1901. Appendix 2 is titled ‘Glimpses of Two Modern Governors-General: Dr Peter Hollingworth and Dame Quentin Bryce’. Appendix 3 pays tribute to ‘Two Constitutional Scholars: Sir Kenneth Wheare and Dr Eugene Forsey’. The ‘Introduction’ is new. It explains the scope of the work, and identifies several themes that recur within it. Markwell acknowledges the curious nature of constitutional conventions as ‘essentially unwritten rules based on principle and precedent, which are considered binding although usually not legally * BA, LLB (Hons) (UQ), LLM, PhD (UBC); Zelman Cowen Professor of Law, Melbourne Law School, The University of Melbourne. 1132 2017] Book Review: Constitutional Conventions 1133 enforceable.’1 Conventions by nature are prone to controversy. This is best illustrated by the constitutional crisis of 1975 that culminated in the dismissal of the Prime Minister by the Governor-General, a matter to which Markwell devotes considerable attention. A major theme of the book is the role of constitutional conventions in determining the relationship between the Governor-General and the Prime Minister in general, and the existence and scope of the ‘reserve powers’ of the Governor-General in particular. The Governor-General is usually obliged to act on the formal advice of the Prime Minister; the reserve powers are exceptions to this rule. Other major themes are the relationship between the Queen and the Governor-General (in particular, who is Australia’s head of state?), the evolution of the role of the Governor-General since federation as part of a broader ‘Australianisation’ of the Crown, and the sources of informal advice appropriately available to the Governor-General on the exercise of reserve powers. Markwell makes three related points in the ‘Introduction’ that apply gener- ally to the materials in the following chapters. First, while Australia inherited the idea of constitutional conventions from the United Kingdom, it does not follow that the content of particular conventions should be identical in the two countries. For example, Markwell suggests that: there are various forms of responsible government under different constitu- tions, and the Australian Constitution embodies a particular form of responsi- ble government that is similar, but not identical, to that in the UK and some other countries.2 Secondly, constitutional conventions evolve continuously, making the task of identification especially challenging.3 Thirdly, that task of identification requires ‘close attention both to precedent — the often little-known history that is relevant — as well as to the constitutional principles in play.’4 The works of the constitutional scholars are of great importance in this regard, and the book is dedicated to the memory of two of them, Sir Kenneth Wheare and Dr Eugene Forsey. Lastly, Markwell acknowledges in the ‘Introduction’ that, as a ‘selection of diverse pieces written in various contexts’, the book does not provide complete 1 Donald Markwell, Constitutional Conventions and the Headship of State: Australian Experience (Connor Court Publishing, 2016) 13. 2 Ibid 14. 3 Ibid 16–17. 4 Ibid 19. 1134 Melbourne University Law Review [Vol 40:1132 answers to all of the questions that it raises; nor does it provide a comprehen- sive history of the office of Governor-General.5 By way of partial remediation, he draws attention to three recent developments involving the role of the Governor-General and the conventions relevant thereto. The first is the ‘mistaken view’ that the Solicitor-General should provide independent legal advice to the Governor-General, upon request.6 The second is the ‘undesira- ble’ prospect that the growth of the office of Official Secretary to the Gover- nor-General could lead the Official Secretary to attempt to act as a ‘de facto constitutional adviser’ to the Governor-General.7 The third is the now established practice of rapid publication of documents relating to the Gover- nor-General’s exercise of constitutional and related discretions, recently exemplified by the Prime Minister’s advice to the Governor-General in March 2016 to prorogue and shortly afterwards recall the Parliament.8 Markwell invites further examination of these matters and I comment on two of them below. Chapter 2 (‘Constitutional Conventions and Responsible Government’) comprises a substantial extract from a paper published in 2007 on Australian constitutional conventions generally,9 which is then followed by brief case studies of the particular conventions of responsible government relating to a hung parliament and ministerial resignations.10 The paper marks out the dimensions of uncertainty surrounding conventions, which inhabit ‘the territory between legal rules, moral principles, and political practices.’11 It lists numerous questions that must be considered in determining the nature and content of Australian constitutional conventions and argues strongly for more sustained and rigorous attention to them, both in their domestic context and from an international comparative perspective. At the same time, however, it recognises the evolutionary quality of conventions that makes them inherent- ly unstable and politically contentious.12 5 Ibid 22. 6 Ibid 23. 7 Ibid. 8 Ibid 23–4. 9 Ibid 27–31. Originally published as Don Markwell, ‘Constitutional Conventions’ in Brian Galligan and Winsome Roberts (eds), The Oxford Companion to Australian Politics (Oxford University Press, 2007) 131–2. 10 Markwell, Constitutional Conventions and the Headship of State, above n 1, 39–48. 11 Ibid 28. 12 Ibid 31–8. 2017] Book Review: Constitutional Conventions 1135 Chapter 3 reproduces the 1987 Trevor Reese Memorial Lecture on ‘The Crown and Australia’.13 It begins with a valuable historical account of the startling changes in the constitutional roles of the Crown and its various Australian representatives, Governors and Governors-General, from the colonial era until the acquisition of Australian nationhood and independence from the United Kingdom. Markwell neatly demonstrates the evolutionary nature of a radical transformation that was achieved substantially through revision of constitutional conventions rather than formal amendment of the Australian Constitution.14 He then advances five propositions on the constitu- tional role of the Governor-General: (1) that the Governor-General ‘acts in almost all cases on and only on the advice of Ministers’;15 (2) that the Gover- nor-General, like the Queen, has the ‘Bagehot’ rights to be consulted, to encourage and to warn;16 (3) that the Governor-General has limited reserve powers relating to the appointment and dismissal of ministries, and dissolu- tion of parliament;17 (4) that the Governor-General is free to consult, in the exercise of his or her functions, whomever he or she believes it prudent to consult;18 and (5) that the Queen has ‘no part in the constitutional functions of the Governor-General’.19 Recognising that not all of these would command universal agreement, he provides supporting arguments based on principle and precedent, especially for the third and fourth of them. He concludes the chapter with interesting ruminations on two big issues: the transition from monarchy to republic and the desirability of codification of constitutional conventions.20 These issues were noted by Markwell in his 1987 lecture, and they remain unresolved almost 30 years later. Chapter 4 (‘The Early Governors-General and the Consultation of High Court Judges’) contains a 1985 book review21 and a 1999 article published in 13 Ibid 49–70. Originally published as D J Markwell, The Trevor Reese Memorial Lecture 1987: The Crown and Australia (Australian Studies Centre, Institute of Commonwealth Studies, University of London, 1987). 14 Markwell, Constitutional Conventions and the Headship of State, above n 1, 50–60. 15 Ibid 61. 16 Ibid, citing Walter Bagehot, The English Constitution (Collins/Fontana, first published 1867, 1963 ed) 111. 17 Markwell, Constitutional Conventions and the Headship of State, above n 1, 61–3. 18 Ibid 63–4. 19